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Instead of using the lengthy passages of the complaint it devoted to tarring the

defendant advisors with allegations made against them in other contexts and with being

somehow responsible for the permeation of an Enron-like culture throughout the

American business community, the Litigation Trust should have done what it was

supposed to do to plead a malpractice action. That would have involved factual

allegations that each of the defendant advisors was engaged by Trenwick America to

provide professional advice of a particular kind, specifying what the advisors did in those

capacities, and identifying how what the advisors did fell short of applicable standards of

care. Even under a notice pleading standard, a plaintiff must articulate facts supporting

an inference that a professional acted without due care.154

Lastly, as to defendant Ernst & Young, the Litigation Trust is barred from

proceeding in this court. The retention agreement Ernst & Young signed with Trenwick

contained a broad arbitration clause. Trenwick America, in the guise of the Litigation

Trust, cannot seek to hold Ernst & Young responsible for malpractice it committed under

n.42 (Del. Ch. 2002) (stating that determining what “substantially all” means in the context of 8 § 271 can be an “amorphous inquiry” and that some cases have read it to mean about

“half”);

154

,

., 734 A.2d 611, 623 (Del. Ch. 1999) (same). , 377 F. Supp. 2d 390, 410 (S.D.N.Y. 2005) (“Professional

malpractice is governed by Rule 8, and plaintiff need only make a short and plain statement of the claim. The short and plain statement, however, must give the defendant notice of the nature of the claim. Simply asserting that [the accountant’s] actions constituted malpractice is not sufficient for even this minimal standard. As the Second Circuit has explained, ‘a simple declaration that defendant's conduct violated the ultimate legal standard at issue . . . does not suffice. But it is enough to assert facts from which, construing the complaint liberally and in the

plaintiff's favor, one could infer such a violation.’”) (quoting (2d Cir. 2001)).

, 243 F.3d 687, 692

86

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